TMT analysis: The Court of Justice has ruled for a second time that Uber operates a transport service rather than an information society service. In this case, a provision of French national law that prohibited the organisation of a system for putting customers in contact with unlicensed taxi drivers concerned a service in the field of transport in so far as it applied to an intermediation service provided by means of a smartphone app and formed an integral part of an overall service the principal element of which was the transport service. As a result, the law was enforceable against Uber.

EU Law analysis: On 30 April 2024, the Court of Justice ruled in the case of ‘La Quadrature du Net and others v Prime Minister, Minister of Culture’. The judgment addresses the legality of the retention and access to personal data, specifically IP addresses, by public authorities for the purpose of combating copyright infringements online. The court held that such access is permissible only under strict conditions and subject to prior judicial review. This decision has significant implications for data protection and the rights of internet users within the EU. Written by Alexander Schmalenberger, knowledge lawyer at Taylor Wessing in Hamburg.

EU Law analysis: The Court of Justice was called upon to interpret Regulation (EC) No 261/2004, the Air Passengers Rights Regulation in a preliminary ruling. The Court of Justice had to determine whether the regulation was to be interpreted to mean that in order for a passenger to be entitled to the compensation set forth under the regulation when a flight is delayed by three or more hours, an air passenger must have presented him-or herself for check-in in good time. The Court of Justice determined that the compensation foreseen in case of delay of at least three hours is intended for those passengers only, who suffer a loss of time as a result of the delay. That being said, when a passenger never went to the airport because s/he knew that the flight would arrive with a huge delay, s/he has not suffered such a loss of time and is thus not entitled to compensation. Written by Harald Sippel, head of European Desk at Skrine.

EU Law analysis: The Court of Justice found that, where the carrier opts to delay a flight to await passengers who have not cleared security, due to a problem at security, it cannot then claim that subsequent delay to flights in the rotation were caused by extraordinary circumstances and therefore not eligible for compensation. The decision to delay the original flight in the rotation, which was not a decision that the carrier was obliged to make, broke the chain of causation between the extraordinary circumstance and the subsequent delay to later flights in the same rotation. The decision underlines the need for a carrier who wishes to rely on the Regulation (EC) 261/2004 Article 5(3) compensation exemption to demonstrate a causal link between the extraordinary circumstance and the subsequent flight delay, which has not been broken by subsequent decisions or events. Written by Kathryn Ward, Of Counsel (Consultant) at DLA Piper UK LLP.

IP analysis: The court held that a landlord who lets out short term apartments in an apartment block, where each apartment includes its own television with an ‘indoor antenna’, is infringing copyright by communicating every single broadcast those televisions receive to the tenants. Written by Phillip Johnson, professor of Commercial Law, Cardiff University and barrister, PackingtonIP.

EU Law analysis: In the context of a flight delay claim brought by a claims management company (Flightright) against an air carrier (TAS), the Court of Justice was presented with another opportunity to interpret the meaning of ‘extraordinary circumstances’ under Article 5(3) of the EU Air Passengers Rights Compensation Regulation, the major exculpatory power for air carriers to avoid paying statutory compensation for delays. The Court of Justice decided that a shortage of airport staff responsible for loading baggage can be deemed an ‘extraordinary circumstance’ exempting air carriers from compensating passengers for long delays. However, carriers must demonstrate that this circumstance could not have been avoided even with all reasonable measures and that they took appropriate steps to mitigate the impact, forcing a close look at the facts of each case. This ruling is significant for aviation and consumer practitioners as it clarifies the scope of ‘extraordinary circumstances’, impacting how carriers handle compensation claims related to staff shortages. Written by William Moody, barrister at Henderson Chambers.

The Court of Justice has held that a French measure imposing a minimum €3 charge for home delivery of new books on orders below €35 must be assessed under EU rules on the free movement of goods. Amazon EU, established in Luxembourg, challenged the Order of 4 April 2023 before the French Council of State, arguing that it infringes the Directives on electronic commerce and services in the internal market, as well as the principle of free movement of goods. The Court found that, since the measure aims to preserve cultural diversity, its compatibility cannot be examined under those directives, which exclude such objectives. However, the measure affects the overall selling price of books and therefore constitutes a measure having equivalent effect to quantitative restrictions on imports, as it particularly impacts distance selling and traders from other Member States. The Court concluded that the rules on delivery do not relate to a ‘selling arrangement’ and confirmed that the measure must be reviewed under primary EU law on free movement of goods, without ruling on whether it can be justified.

EU Law analysis: The Court of Justice of the EU rules that online comparison service platforms for goods or services operated by undertakings which do not itself offer the compared products or services, do not constitute ‘comparative advertising’ subject to Article 2(c) of Directive 2006/114/EC. The question whether undertakings are competing undertakings covered by the concept of comparative advertising depends on the substitutability of the goods and services which those undertakings offer on the market. Since comparison services platforms do not themselves offer the products compared on their website, they are not considered ‘competitors’ of the companies whose products are compared on the online comparison platform. The same applies if the company, as an intermediary, offers consumers the possibility of concluding contracts with the companies that offer goods or services being compared. Written by Roman Brtka, partner at Ashurst LLP.

EU Law analysis: the Court of Justice clarifies that the concept of ‘average consumer’ must be defined not only by reference to a consumer who is reasonably well-informed and reasonably observant and circumspect but must also take into account the fact that an individual’s decision-making capacity is impaired by constraints (eg cognitive biases). It also states that a commercial practice involving the simultaneous offer of a personal loan, and an unrelated insurance product is neither an aggressive nor an unfair commercial practice per se, under Articles 6 and 8 of Directive 2005/29/EC, the EU Unfair Commercial Practices Directive (EU UCPD). Finally, the court rules that the EU UCPD does not preclude a national measure allowing an authority to grant the consumer a reasonable cooling-off period between the signing of contracts after an aggressive or unfair commercial practice has been identified, unless there are other means less prejudicial to the freedom to conduct a business which are equally effective to put an end to such practice. Written by Roman Brtka, partner at Ashurst LLP.

EU Law analysis: The Court of Justice ruled on the interpretation of Article 16 of Regulation (EC) 864/2007 on the law applicable to non-contractual obligations, Rome II, arising out of a Bulgarian preliminary reference.​ The case involved Bulgarian citizens (ENI ​ and YKI) who sought compensation from HUK-COBURG-Allgemeine Versicherung AG (HUK-COBURG) (a German insurance company) for non-material damage arising out of their daughter’s death in a German road traffic accident. ​The Court of Justice determined that a Bulgarian national provision allowing compensation for non-material damage based on fairness cannot be considered an ‘overriding mandatory provision’ under Article 16 of Rome II, unless the legal situation has sufficiently close links with the forum state, and the national provision is of such importance to the national legal order that it justifies a departure from the law designated by the usual Article 4 of Rome II conflict rule.​ ​The decision emphasises the need for a restrictive interpretation of Article 16 to ensure legal certainty and balance between the interests of the liable party and the damaged party. ​Written by William Moody, barrister at Henderson Chambers.

Information Law analysis: In its judgement of 4 October 2024, the European Court of Justice ruled, that the provisions of Chapter VIII of the EU’s General Data Protection Regulation, Regulation (EU) 2016/679 (EU GDPR) do not preclude national rules which grant undertakings the right to rely, on the basis of the prohibition of acts of unfair competition, on infringements of the substantive provisions of the EU GDPR allegedly committed by their competitors. The court further ruled that the data of a pharmacist’s customers, which are provided when ordering pharmacy-only but non-prescription medicines on an online sales platform, constitute ‘health data’ within the meaning of Articles 4(15) and 9 of the EU GDPR (to that extent contrary to the Advocate General’s opinion of 25 April 2024). Verena Grentzenberg, partner, and Andreas Rüdiger, senior associate, at DLA Piper, discuss the decision in the Lindenapotheke case.

Arbitration analysis: In International Skating Union v Commission, the Court of Justice found that certain rules of the International Skating Union (ISU) on athletes’ eligibility to participate in ice-skating events breached EU competition law. The decision will be of particular interest to arbitration practitioners because the ECJ also held that the mandatory arbitration mechanism in the ISU’s rules, which required any dispute to be referred to Court of Arbitration for Sport (CAS) arbitration seated in Switzerland, reinforced the ISU’s breach of EU competition law. The Court of Justice considered that by requiring the athletes to submit disputes to arbitration outside of the EU, the ISU deprived the athletes of a proper remedy under EU competition law and prevented matters of EU law and public policy from being reviewed by the courts of EU Member States and the Court of Justice. Written by Samuel Pape, partner, and Stephanie Forrest, associate, at Latham &Watkins LLP.